Divorce, Legal
Separation & Annulment
A
Dissolution of marriage or (divorce) may be filed by a party seeking
to end a marriage. A dissolution or divorce may be granted in the state
of California for irreconcilable differences or incurable insanity. To
obtain a divorce in the state of California you or your spouse must have
lived in California for the last 6 months and for 3 months in the
county where you are going to file for divorce.
A
party who either can’t file for divorce because he or she doesn’t meet the
residency requirements or does not wish to end the marriage for
psychological or economic reasons may file a Legal Separation. The
judicial officer can make orders for child support and/or spousal support,
custody and visitation, and division of property, however the parties
remain legally married, although they may be living apart.
You
may ask the judge to declare that your marriage is not valid by filing an
Annulment (nullity of marriage). There are several reasons for why
a judge may say that a marriage is not legally valid. For example: A
marriage that is incestuous (between close blood relatives), or bigamous
(where a spouse is already married to someone else) is never legally
valid.
Fill out Family Law
forms online at
EzLegal File.
Custody & Visitation
The
Petition for Custody and Support of Minor Children may be filed by
parents who:
-
Have signed a Voluntary Declaration of Paternity, or
-
Are married and don’t want to get legally separated or
divorced, or
-
Are not married and have legally adopted a child
together, or
-
Have been determined to be the parents in a juvenile or
Department of Child Support case.
By
filing this petition, the parents may ask the court to make custody and
support orders, in addition to other orders.
You
may also ask the court to make orders for child support, spousal support,
custody and visitation by filing an Order to Show Cause or a Notice of
Motion on an existing divorce, legal separation, or nullity, domestic
partnership or paternity case.
Paternity
“Establishing paternity” means saying whom the legal parents of a child
are if the parents were not married when the child was born.
A
child’s parentage must be established before you can get child support or
custody and visitation orders. By filing the Petition to Establish
Parental Relationship, you may ask the court for child support or
custody and visitation as part of this case.
Domestic Partnerships
Domestic
partners are defined as “two adults who have chosen to share one another’s
lives in an intimate and committed relationship of mutual caring.”
To
dissolve (terminate) a Domestic Partnership you may file a Petition
for Dissolution, Legal Separation or Nullity.
For more information,
you may visit the Web site by clicking on the following link:
www.ss.ca.gov/dpregistry/index.htm
FAMILY LAW
COURT LOCATIONS
Riverside Family Law
Court
4175 Main Street
Riverside, Ca. 92501
951.955.4600
Business Hours: 7:30 a.m. - 4:00 p.m.
Map and Driving Directions
Hemet Family Law Court
880 N. State Street
Hemet, Ca. 92543
951.766.2525
Business Hours: 7:30 a.m. - 4:00 p.m.
Map and Driving Directions
Southwest Justice
Center
30755-D Auld Road
Murrieta, Ca. 92563
951.304.5100
Business Hours: 7:30 a.m. - 4:00 p.m.
Map and Driving Directions
Indio Family Law Court
46-200 Oasis Street
Indio, Ca. 92201
760.863.8209
Business Hours: 7:30 a.m. - 4:00 p.m.
Map and Driving Directions
Blythe Family Law Court
265 N. Broadway
Blythe, Ca. 92225
760.921.5904
Business Hours: 7:30 - 4:00 p.m.
Map and Driving Directions
HOW TO GET A RESTRAINING ORDER
- What is a
restraining order?
It is a court order
that helps protect people from abuse.
Abuse means to: hit,
kick, hurt, scare, throw things, pull hair, push, follow, harass,
sexually assault, or threaten to do any of these things. Abuse
can be spoken, written, or physical.
- Can I get a
restraining order?
You can asked for one if:
-
A person has abused
you, and
-
You have a close relationship with
that person (married, divorced, separated, dating or use to date,
live together or used to live together*) or you are related (parent,
child, brother, sister, grandmother, grandfather, in-law)
*You have to be more involved than just roommates
For more
detailed information, you may visit the Family Law Assistance Center,
log onto the Judicial Council’s self-help Web site at
www.courtinfo.ca.gov/selfhelp/protection
Fill out Domestic
Violence forms online at
EzLegal File.
SHELTER INFORMATION
For information about a
shelter in Riverside you may contact Alternatives to Domestic Violence 24
hour hotline (951) 683-0829, for county wide shelter information call
1-800-339-SAFE. For counseling services and assistance in typing up
restraining orders please call (951) 352-8718.
You can view numerous
other services in the community that may be of assistance to you by
clicking here.
- The victim of a
domestic violence can ask the District Attorney to file a criminal
complaint.
- Despite official
restraint of the person alleged to have committed domestic violence, the
restrained person may be released at any time.
- It is the
responsibility of the victim to request notification on an inmate's
release.
- The terms and
conditions of the protective order remain enforceable, notwithstanding
any acts of the parties, and may be changed only by order of the court.
Victim's of domestic
violence have the right to go to the superior court and file a petition
and/or an order to show cause requesting any of the following order for
relief:
- An order
restraining the attacker from abusing the victim, and other family
members.
- An order directing
the attacker to leave the household.
- An order
preventing the attacker from entering the residence, school, business,
or place of employment of the victim.
- An order awarding
the victim or the other parent custody of or visitation with a minor
child or children.
- An order
restraining the attacker from molesting or interfering with minor
children in the custody of the victim.
- An order directing
the party not granted custody to pay support of minor children, if
that party has a legal obligation to do so.
- An order directing
the defendant to make specified debit payments coming due while the
order is in effect.
- An order directing
that either or both parties participate in counseling.
The victim of domestic
violence has the right to file a civil suit for losses suffered as a
result of the abuse, including medical expenses, loss of earnings, and
other expenses for injuries sustained and damage to property, and any
other related expenses incurred by the victim or any agency that
shelters the victim.
Fill out Domestic Violence
forms online at EzLegal File
MEDIATION
SERVICES
Family Mediation Services
provides an opportunity for parents to meet with a trained professional to
development a parenting plan that is in the best interest of their
children. The Family Law Code governs mediation and sets forth the
purposes of mediation: To reduce acrimony that may exist between parents,
develop an agreement assuring the children close and continuing contact
with both parents and to effect a settlement that is in the best interest
of the children.
What is Mediation?
Mediation is a
confidential meeting with a Family Court Mediator who will assist parents
in working together to design a parenting plan where they can share their
children after separation or divorce.
What is a Parenting
Plan?
A parenting plan, also
called a custody and visitation order, defines legal and physical custody
and a time share plan for the children. The plan may include holidays,
vacations, and transportation arrangements.
Who Conducts the
Mediation?
The mediation session will
be conducted by a mediator who has a master’s degree in psychology, social
work or marriage and family therapy and who meets the guidelines for
mediators according to the Family Law Code.
How Does Mediation
Work?
Parents will be scheduled
for an appointment for a confidential meeting with the mediator. No other
parties will be present unless one of the parties is a victim of domestic
violence. In that case, the victim may request a separate mediation or
may have a support person present. If the parents reach an agreement on a
parenting plan, the plan will be submitted to the court. If parents are
unable to reach agreement, the mediator will make a recommendation to the
court.
Do Mediators Interview
Children?
The mediator may need to
interview children, but children are not to be present at the mediation
appointment. The mediator will schedule a separate time to interview
children.
Children under the age of
4 will not be interviewed.
What if a Parent
Presents a Risk to the Children?
The mediator will make a
recommendation that provides for safety of children. The mediator may
also make recommendations to assist the family such as therapy, parenting
classes, anger management classes or drug and alcohol rehabilitation.
Legal Terms Relating to Parenting Plans
Legal Custody: The
rights and responsibilities of parents to make decisions relating to the
health, education and welfare of their children.
Joint Legal Custody:
Both parents share in the right and responsibility to make decisions for
their children.
Sole Legal Custody:
One parent has the right and responsibility for making decisions for
children.
Physical Custody:
How much time the children spent with each parent; where the children
live; how day-to-day responsibilities are fulfilled.
Joint Physical Custody:
Children spent a significant amount of time with each parent.
Visitation: The
designated time in which the non-custodial parent shall have
responsibility for the children.
Family Court Evaluations Brochure
FAMILY LAW WORKSHOPS
Riverside Superior
Court is pleased to offer you a variety of workshops on commonly
addressed issues including such topics as how to:
-
File
your initial or responding paperwork for Dissolution/Legal
Separation/Paternity
-
Obtain
temporary orders
-
Know
what to expect in court
-
Complete
the necessary documents to move your case forward
-
Obtain a Default
Judgment
These are free workshops and space is limited. They will be offered at a variety of times and locations,
including
Riverside,
Murrieta, and
Indio.
The following is a description of workshops that are currently being
offered:
Petition/Response Workshop
In this workshop you will learn about the
legal processes involved in filing for Dissolution/Legal Separation
and how to prepare all of the necessary paperwork to allow you to
move smoothly through the process.
There are no workshop requirements--3
hour workshop
Paternity & Child Custody/Visitation/Support Workshop
In this workshop you will learn the
process to follow to be named legal parent of a child born outside
of marriage, and the process to obtain temporary orders on issues
such as child custody, visitation, and support.
There are no workshop
requirements--1.5 hour workshop
How to
Get Temporary Orders Workshop
In this workshop you will learn the
process to obtain or modify temporary orders on issues such as child
custody/visitation, child/spousal support, temporary possession &
control orders, and what to expect after
the motion has been filed.
Petition prepared and/or on file
required--1.5 hour
Disclosure Workshop
In this workshop you will learn how to
prepare those documents necessary to move your case along,
including the
Schedule of Assets & Debts
(FL-142),
Income & Expense
Declaration (FL-150) and
Declaration of Disclosure
(FL-140).
Petition prepared or on file required--1 hour
workshop
Default Judgment Workshop
In this workshop you will learn the
process to obtain a default judgment to include all of the necessary
documents and resolving all of the relevant issues.
Petition on file and served,
disclosures completed. The following is a list of documents you should have completed and
have with you for the workshop. If you have
not completed these documents you should attend
the Disclosure Workshop first.--3 hour workshop.
-
Petition
-
Proof of Service
-
Schedule of Assets &
Debts
-
Income & Expense
Declaration
-
Any orders that the
court has already made including injunctions,
support, or custody/visitation
On-line courses will soon be available on the Family Law/Self-Help
web page; courses such as Compromising Arrears (COAP), Grandparent
and Visitation, Retaining Counsel.
Daytime workshops are
held at the following
locations:
FAMILY LAW FACILITATOR PROGRAM/CALENDAR
Facilitators are licensed attorneys
with experience in family law matters and they provide free
assistance to litigants regarding petitions, responses,
Department of Child Support Services inquiries, child and
spousal support calculations, motions, and general family law
procedural questions.
Facilitators are available to
meet with litigants at family law courthouses throughout the
county during court hours, however many litigants are not able
to utilize these services due to work and other commitments.
A
night court session is conducted for traffic matters on the
third Wednesday of each month at the Moreno Valley courthouse
between 5:30 - 7:30 p.m., and the first Tuesday of each month at
the Larson Justice Center in Indio between 4:30 - 6:00 p.m.
During these sessions a facilitator will be available to meet
with family law litigants on a first come, first serve basis.
Facilitators are available during
regular court hours at Riverside, Hemet, Murrieta, and Indio.
For the facilitators calendar please
click here.
To review the
calendar for
Family Law Assistance Night Program
click here.
FAMILY LAW ASSISTANCE
CENTER
The Family Law Assistance
Center is designed to help people representing themselves in family law
matters. If you do not have any attorney and wish to proceed with your
case in propria persona (without an attorney) the Family Law Assistance
Center can help you.
What services can I
receive at the Center?
You will receive
guidance on selecting and completing forms, information regarding
community resources and workshops, and the option to schedule an
appointment with the Family Law Facilitator to assist you with legal
procedures necessary to complete your case. The Assistance Center staff
can offer help in the following court matters:
Petitions for divorce,
legal separation or nullity
Complaints to establish paternity
Petition for custody
Answers and responses
Modifications of existing orders
Fee waiver applications
Proofs of Service
Domestic Violence restraining orders
Orders to show cause
Child custody and visitation
Child and spousal support
Stipulated agreements and judgments
Findings and orders after hearing
What can I expect when
I visit the Assistance Center?
When you visit the
Family Law Assistance Center, you will be asked to fill out an "Intake
Sheet." The information you provide on the intake sheet will help
staff to better address your needs. This information will also provide
us with statistical information to continue to receive funding for our
centers.
If you require
additional help with preparing a restraining order or scheduling an
emergency hearing (ex parte), you will be referred to staff who will
provide you with procedural assistance and guidance with completing the
necessary forms.
The Family Law
Facilitator is a neutral attorney available to assistant both parents
and all other parties who have questions about family law issues. The
Facilitator is NOT YOUR ATTORNEY and cannot go with you to court. There
is no attorney-client relationship between you and the Family Law
Facilitator. Communications between you and the Family Law Facilitator
are not confidential.
The Facilitator is
available by appointment to discuss legal procedures which involve
complex issues.
The Family Law
Facilitator and staff encourage individuals who represent themselves to
attend the workshops offered by the Assistance Center. These specialized
classes are beneficial and are recommended to help individuals
understand court procedures.
How will I benefit from
coming to the Family Law Assistance Center?
You will have a
better understanding of family law court procedures.
The court process will
seem less complex and confusing.
You will be provided
with legal forms and instructions to proceed with your matter.
You will be able to
learn how to complete forms correctly which will allow more timely
resolution of your case.
You will be provided
information on referral services and community resources such as
the District Attorney's Office, Alternatives to Domestic Violence,
Crisis Intervention and Hotlines, Counseling, Emergency Shelters, Social
Services, and other vital help services.
What do I bring with
me?
A copy of all court
documents relating to your case. It is helpful if you organize documents
by date, with the oldest date on the bottom and newest date on top.
Your last three pay check
stubs
Your last tax return.
Income and expense information
Where are the Family
Law Assistance Centers located?
The Assistance Centers
are open to the public from 7:30 a.m. - 4:00 p.m.
Click here for the locations.
Important to Remember
The Family Law
Facilitator and Assistance Center staff provide information to educate
the public and provide individuals with options that are available to
them. The Center employs skilled, neutral persons who are available to
both parties. If it is determined that your case extremely complex or
that there are multiple contested issues, you will be advised to seek
the services of a private attorney.
Our Mission Statement
The Family Law
Assistance Center is dedicated to providing you, the self represented
litigant with:
- GREATER ACCESS TO
THE FAMILY LAW PROCESS
- A BETTER
UNDERSTANDING OF FAMILY LAW PROCEDURES
- EXPEDITED
RESOLUTION OF YOU FAMILY LAW MATTERS
FAMILY LAW PACKETS
The following
list is a variety of Family Law packets used to file Family Law matters
with the court. These packets consist of general information,
instructions and links to the actual forms that can be completed on line,
and then printed for filing.
All
packets listed are in .pdf format which require
Adobe
Acrobat Reader.
HOW TO REQUEST COPIES
Requests for copies is
$.50 per page. If certification is requested, an additional $15.00
per document will be assessed.
Please provide the
following information:
- Petitioner's and
Respondent's name
- Case Number
- Specific documents
requested
To request copies by mail,
(click here for
court mailing addresses)
submit a check payable to 'Clerk of the Court.' DO NOT SEND CASH.
If the total amount is unknown, indicated under the amount line 'not to
exceed $25.00.' The correct amount will be filled in and a receipt
will be forwarded, along with the requested copies. All checks
must be preprinted with makers name and address. Copy orders are
filled within 7-10 working days.
Please include a self
addressed, stamped envelope large enough to accommodate the request.
Requesting Certified
Judgments
To request a certified copy of a
judgment (divorce decree), please provide us with a case number. If
you do not know the case number, you must provide us with the full names
of both parties at the time the divorce was filed and the approximate year
of the filing.
You may mail (click here for
court mailing addresses)
your request, along with a self-addressed envelope with sufficient
postage and a check or money order for $15 or you may come into the office
between the hours of 8 a.m. and 4 p.m., Monday through Friday.
Requesting Copies of Paternity Cases
To request
copies from a paternity case, you must come into the office and
show picture identification. Information/copies can only be provided to
the actual parties listed on the case!
FORMS/FEES
MORE INFORMATION
The Judicial Council offers self help
topics relating to Family Law matters that will answer a lot of questions
relating to the Family Law court and it's many functions.
California Self Help Center
Reference Information
Legal Aid
Public Service Law Corporation
Latino Lawyers Association
Inland Counties Legal Services
Corporation
FREQUENTLY ASKED QUESTIONS
JUDGMENTS...
CUSTODY/VISITATION/SUPPORT...
COURTROOM PROCEDURES...
DIVORCE
Whether
filing for Dissolution, Legal Separation or a Nullity Proceeding,
the process is essentially the same. The minimum document
requirements are:
Summons (FL-110),
Petition (FL-100) and a
Certificate of Counsel. If you have children you must also file a
Declaration Under Uniform Child Custody Jurisdiction and Enforcement
(FL-105). Recommended
additional forms:
Income and Expense Declaration (FL-150),
Schedule
of Assets and Debts (FL-142), and
Property Declaration – Separate
and Community (FL-160).
The “Recommended Additional Forms” are
called “Declarations of Disclosure.” These documents are required
by the court near the beginning of a Dissolution, Legal Separation
or Nullity Proceeding. Updated Disclosures may be required at the
end of your case too. So, if you do your first set now, you will be
in compliance with the law AND you can save yourself an extra step.
After service of the initial documents
on the other side (the Respondent), what you are required to do will
depend upon what actions the Respondent takes. The Respondent has
30 days to file a written
Response
(FL-120) to your Petition.
If
the Respondent does not file a Response, you may
obtain a default judgment or you may complete the case by
agreement. You may complete the case by agreement even if the
Respondent does not file a Response. In that case, the Respondent’s
signature on the agreement must be notarized.
If the
Respondent does file a Response, the parties must
either enter into an agreement that is turned into a judgment, or
they must go to trial.
No matter what your friends tell you, you will NOT BE SINGLE in 6 months.
Finalizing your divorce does not happen automatically, it requires
MORE PAPERWORK called a Judgment! The parties are responsible for
taking the necessary steps to get the final Judgment. Therefore,
the amount of time it takes to get the final judgment is up to the
parties.
The soonest you can become single is 6 months and one day after service on
the other party, but certain documents must be on file, including
the proof of service. So, if you fill out Judgment paperwork and
turn it in before the 6 months and one day has passed, provided the
paperwork is done correctly, you will receive your Judgment in the
mail with the Judge’s signature. The Judgment will also have a date
written on it. That date refers to “Date Marital or Domestic
Partnership Status Terminates” – the date written next to this
language is the date you become single. IF you submit your Judgment
paperwork after the 6 month and one day time period, you will become
single the day the Judge signs the paperwork. To be sure you are
divorced, you will want to be sure a document called Notice of Entry
of Judgment is in your court file.
Out of State Service:
Certified
Mail.
If the Respondent lives out of state, he or she can be served by
mailing a copy of the Summons/Petition and all other filed documents
by certified, return receipt mail to that person. In order for
service to be valid the return receipt from the post office must be
signed by the Respondent, not by any other person. If the
Respondent does not sign for the documents, you will need to attempt
either personal or substituted service.
Acknowledgement and Receipt:
This type of service is used on an out of state or out of country Respondent.
With this type of service, the server mails to the Respondent a copy of the
Summons/Petition and all other filed documents, along with two copies of the
Notice and Acknowledgement of Receipt (FL-117) and a stamped, return envelope.
The server, not the Petitioner, must complete the top portion of the Notice and
Acknowledgement of Receipt. Service is deemed complete on the date the Notice
and Acknowledgement form is signed at the bottom by Respondent. As with a
Certified Mail receipt, this type of service is NOT VALID unless signed by the
Respondent.If the
Respondent does not complete, sign and return the Notice and
Acknowledgement of Receipt form within 20 days of the mailing of the
Summons/Petition and other filed documents, the Respondent can be
liable for costs incurred in serving by one of the other valid
service methods. The Petitioner must file a motion for
reimbursement of these costs.
Once the Notice and Acknowledgment of Receipt is signed and returned it
must be attached to
Proof of Service of Summons form (FL-115) and
filed with the Court.
Note: You may avoid personal
service if the opposing party agrees to be served by mail. Service
by mail in place of personal service may be accomplished by using
the Notice and Acknowledgment of Receipt method.
Substituted
Service:
If you cannot get the Respondent personally served after 3 attempts,
you may have your server leave a copy of the Summon/Petition and
other filed documents at the Respondent’s place of business or
residence. But, you must follow the legal requirements.
This
involves leaving the documents with a person who is in charge at the
regular place of business or a competent adult (someone over 18) who
lives at the residence of the Respondent. The server must inform
the person of the general nature of the paperwork.
Then, the server mails a copy of the
paperwork to the same address where the papers were left, so either
a residence or regular business address.
Next, the server must
fill out a “Declaration of Due Diligence”. This is a document that
describes all the attempts that were made to serve the Respondent
personally. The Declaration is usually attached to the
Proof of
Service of Summons form FL-115.
Once service
is complete, the person who performed the service will have to fill
out a Proof of Personal Service and that will have to be filed with
the court.
Publication/Posting:
When all else fails – personal service, substituted service, service
by acknowledgment and receipt, service by mail, return receipt
requested, you can apply to the Court for permission to serve by
Publication or Posting. This method is generally used to serve
people WHO ABSOLUTELY CANNOT BE FOUND.
If you
cannot locate the Respondent you may apply to the Court to serve by
Publication or Posting. Before you can ask to serve by Publication
or Posting you must make a good faith attempt to find the other
party. This includes mailing a letter to the last known address to
see if it comes back, talking to old neighbors, checking with
relatives, going to the last known employer, checking the internet,
checking with family and friends, checking to see if the person owns
real property in the area by going to the County Recorder’s office
and any other thing you think might help you find the person.
Your
attempts to find the Respondent are put in a “Declaration”. The
packet for Service by Publication is available at the Court. So is
the packet for Service by Posting and Mailing. To qualify for
service by Posting and Mailing, you must be low income, meaning
living below the poverty level. Generally, people who are receiving
public benefits or qualify for a fee waiver use this method. If the
court is satisfied that you did all you could to find the Respondent
the Judge will give you permission to serve by Publication or
Posting. If you don’t qualify for service by Posting, then you will
request to serve by Publication. This means you place a legal
advertisement in a newspaper that
is most likely to give the Respondent actual notice of the case.
For instance, if the Respondent’s last known address is in the
County of Riverside you should place the legal advertisement in a
Riverside County newspaper. The advertisement must be published
once a week for 4 consecutive
weeks and then service is deemed complete. This manner of service
is complicated and can be very costly so it should be used only as a
last resort.
An active duty member of the military
can generally be found by contacting their command. Please note
however that due to privacy and security concerns you may not be
successful in finding someone. You may also contact the locator
service for each branch of the military.
Further online information can be
found at:
www.marines.mil/usmc/Pages/faq.aspx and
www.dmdc.osd.mil
Additional resources include:
Army
Worldwide Locater
8899 East 56th Street
Fort Benjamin Harrison, IN 46249-5301
Tel: 1-866-771-6357
Navy
Locater: Navy Personnel Command (PERS 312),
5720 Integrity Drive
Millington, TN 38055-3120
Tel: 901-874-3388, Fax: 901-874-2000
Commandant of the Marine Corps Headquarter, USMC Code MMSB-17
2008 Elliot Road, Room 203
Quantico, VA 22134.
Tel: 1-210-652-5775
United
States Air Force HQ/AFBCDPDXIDL
550 C Street, West, Suite 50
Randolph AFB, TX 78150-4752.
If you
have information regarding the general location and branch of the
Respondent, then you can contact the base
Judge Advocate General
(JAG) for assistance. Call the main base operator and ask for the
Judge Advocate.
Federal law, the
Service members Civil Relief Act, prohibits entry of a default
judgment against an active duty member of the military. You may
seek legal assistance at the Family Law Facilitator’s office or
through a private attorney for more information regarding the
requirements and limitations of federal law.
If thirty days have passed since the Summons/Petition was served and the
Respondent has not filed a written Response, the Petitioner may
obtain a default judgment. A
Default Judgment
(FL-180) permits the
Petitioner to obtain the relief that was requested in the original
paperwork.
Another
option is for the parties to agree to settle the case with a
Stipulated Judgment or Marital Settlement Agreement. If the parties
seek to settle the case with an agreement, and the Respondent has
not filed a response, the Respondent’s signature on the agreement
must be notarized.
JUDGMENTS
If you have obtained a final Judgment of Legal
Separation, you must file a
Petition for Dissolution
(FL-100) in order to
obtain a Judgment of Dissolution, which will terminate your status
as a married person.
If you
were never served with the original Summons/Petition for Dissolution
you may file a Motion to “set aside” the existing Judgment by
Default.
If the Judgment by Default is less
than 6 months old, file a “Motion to Set Aside Default Judgment per
Code of Civil Procedure section 473”
If the
Judgment be Default is more than 6 month old, but less than 2 years
old, file a “Motion to Set Aside Default Per Family Code Section
2121”.
If the
Judgment by Default is more than 2 years old, file a separate action
to ask for the Judgment to be Vacated and/or Set Aside.
CUSTODY/VISITATION/SUPPORT
In
order to change existing orders, for instance those concerning child
custody/visitation, or child support, you must file a
Motion (FL-301) or
Order to Show Cause (FL-300). Please note, however, that in order to
modify an existing order it is necessary to show a significant
change in circumstances that affects your ability or the other
person’s ability to follow the orders. For instance, if you have a
visitation plan that allows you to see the children 3 days per week
and the other parent is moving to another school district, that
could affect your ability to have the kids for those 3 days. If you
are paying child support and you just got laid off, your ability to
pay support has changed. These are “changes in circumstances” – the
type of reason a Judge looks for in order to justify changing
orders.
If you believe the child is in
danger due to the other parent’s activities you may file an ex parte
Order to Show Cause (FL-300). The ex parte allows you to ask for IMMEDIATE
TEMPORARY orders for custody and visitation. Note: if you have a
valid custody/visitation order that order is enforceable until
changed.
If you want to request a drug test, then the
court may consider “habitual or continual illegal use of controlled
substances” or “continual abuse of alcohol” in determining what is
in the “best interest of the child”. Drug testing may be ordered
only after the court has made a finding of “habitual, frequent, or
continual illegal use of controlled substances”. The court is
limited to ordering the “least intrusive” method of testing or urine
tests only. The court may not order a parent to submit to a hair
follicle drug test unless the other parent agrees to the test.
If you
do not have a court order you will need to file a
Motion
(FL-301) or
Order
to Show Cause (FL-300) to obtain specific custody and visitation orders.
This will require you to have an existing case, either a
Dissolution, Legal Separation, Nullity, Petition to Establish
Parental Relationship, Petition for Custody and Support, or County
of Riverside (DCSS) v. Other Parent, prior to making the request.
If you have an existing
Custody/Visitation order and the order is specific in nature (not
“reasonable visitation”) get a certified copy of your order. If the
other parent will not cooperate when it is time to have your
children, ask the police to assist in enforcing the order. Other
options include bringing a “Motion” or “Order to Show Cause” to
modify custody/visitation based upon the other side’s refusal to
comply with court orders.
For
repeated failure by one parent to follow orders you may file a
Motion (FL-301) or
Order to Show Cause
(FL-300) to modify custody/visitation based
upon the other parent’s refusal to follow the court orders. You may
also seek an “Order to Show Cause re: Contempt”. A Contempt
proceeding is very difficult, time consuming, and is less likely to
give you the relief you seek. A Judge will review your documents
before allowing them to be filed by the Clerk, so you need to have
good, clearly stated facts before filing the Contempt. Contempt
should always be used as a last resort as it is a quasi-criminal
proceeding.
There is little a
grandparent can to do obtain visitation rights. Such rights can
only be ordered by the court in very limited circumstances. Before
coming to court to request Grandparent visitation, try to work
something out with the parent with primary custody. This is your
BEST option. Most grandparents find themselves asking for
visitation because: their child, the parent of the grandchild, is
deceased, incarcerated, or has disappeared due to a problem with
drugs, alcohol or some other unknown reason. If the parents of the
child are still living together, the Court cannot intervene to give
you visitation rights.
If the parent who has custody will
not allow you to see your grandchild, you should seek the advice of
an attorney or come to the Family Law Assistance Center for further
direction. Grandparent visitation is very case specific – your
facts may or may not be sufficient to convince a court you should
see the grandchild. The key fact to prove is whether the child not
seeing you will actually be detrimental (damaging) to the child. In
other words, it’s not what you want or are longing for, the question
really is: will a visitation plan truly benefit the child.
If the
other party is not following court orders you may:
- File a
Motion (FL-301) or
Order to Show Cause
(FL-300) to modify existing orders;
- File a
Motion or
Order to Show Cause (FL-300) to modify existing orders AND
admonish the other parent for their failure to cooperate in the
parenting plan;
- File a
Contempt (FL-410) action.
Note: A Contempt proceeding is very
difficult, time consuming, and is less likely to give you the relief
you seek. A Judge will review your documents before allowing them
to be filed by the Clerk, so you need to have good, clearly stated
facts before filing the Contempt. Contempt should always be used as
a last resort as it is a quasi-criminal proceeding.
-
Am I expected to pay child support if I am not the biological parent of
the child?
Under certain circumstances, a non-biological
parent may be ordered to pay support. For example, if you
have been treating
the child as your own, the child calls you Dad or Mom, you act exactly the way a
biological
parent is expected to act, the Court can make an order naming you as
the parent and making orders
for custody/visitation and support. There are
certain other actions and timelines that will influence the
Court regarding
whether or not such an order is appropriate. You should seek legal guidance on
this issue.
If
your spouse is employed you may obtain an “Earnings Assignment Order
for Spousal or Partner Support” (FL-435) from the court or online.
Fill out the Form, turn it into the Court clerk’s office with a
self-addressed stamped envelope and when the order is returned to
you by mail, serve a copy on the employer. This will cause the
employer to automatically deduct the money from your spouse’s
paycheck.
Collection is still possible even if
your spouse is retired, receiving Social Security Disability (not
SSI), Social Security Retirement, or State Disability. If you have
an order for child support in place, then you may qualify for help
with collection of spousal support through the Department of Child
Support Services. If Child Support Services declines to assist with
collection of spousal support, seek the assistance of an attorney or
ask for information at the Family Law Assistance Center.
Once
you have obtained the wage assignment, a “Motion” or “Order to Show
Cause” determining how much is owed in past support (arrears) can be
brought and additional payments may be required monthly to pay off
that arrears amount.
Collection from
Self Employed individuals or people working “under the table” is
nearly impossible, however, you can do the following: If your
spouse is not employed, is self employed, or working under the
table, and IS NOT PAYING, then you can file a
Motion
(FL-301) or
Order to
Show Cause (FL-300) to determine how much is owed in back payments
(arrears). Once this amount is determined at the hearing, you ask
for a money judgment. The Money Judgment should be filed in every
county where the spouse who is supposed to pay may do business or
own property.
Once
you have your money judgment, you can pursue collection by any
manner allowed by law, including levying against personal property,
including certain bank accounts.
When you obtain a
Judgment of Dissolution, Legal Separation, Nullity or Judgment for
Custody and Support, Judgment Establishing Parentage, in which there
is an order for support be sure to obtain a certified copy of that
order and record it at the County Recorder’s Office in every county
where the person ordered to pay resides, owns property, or does
business.
-
I am currently legally separated and would like to get child
support, is this possible?
So long as you have filed a case for
Legal Separation then you may seek child custody, visitation and
support
orders in the same manner that you would if you had filed a Petition
for Dissolution.
If you have not
filed a case, you will need to do so before the court can make
orders. Again, you can
request child support by: going to Department of Child Support
Services and asking them to file on your behalf,
filing your own case for Dissolution, Legal Separation or Nullity.
You may even ask for child support if
you need to request a Domestic Violence Restraining Order.
COURTROOM PROCEDURES
The law does not require the judge
to hear testimony from the parties or the attorneys representing the
parties. In fact, a judge can make a decision based entirely on the
paperwork that is submitted. Usually each side is given a little
time to present new information. However, the court will listen
only to those facts that are necessary to decide the issues raised
by the Motion or Order to Show Cause. For instance, if the issue
at the hearing concerns child custody the court does not need to
hear testimony concerning spousal support, rather, the court wants
to only hear about custody matters.
Your best insurance policy is to be
sure your side of the story is told in your written documentation.
If you do not file a written response to the other party’s
documents, the judge does not have to hear your side of the story.
There are important time limits you must follow. Bottom Line: your
response (your side of the story) MUST be submitted to the other
party and the court ON TIME or else the Judge DOES NOT have to
consider it.
If you have timely and appropriately
filed papers the options available to you include a Motion to Set
Aside, Motion for Reconsideration, or an Appeal or Writ. Each of
these motions is complex and should be considered only after seeking
some legal assistance.
|
